Three siblings inherit a two-family home in Brooklyn after their surviving parent passes away. The estate closes, the deed is transferred, and they now own the building together as tenants in common. The oldest sibling lives on the first floor and wants to stay indefinitely. The middle sibling lives out of state and wants cash to fund a new business. The youngest sibling refuses to answer the phone or contribute to the property taxes. Stalemate.
This is not a failure of the probate process—it is a failure of family alignment. When co-owners reach a permanent deadlock regarding the management, use, or sale of a shared asset, New York law provides a blunt instrument to break the tie: a real estate partition action.
The Mechanics of Forced Division
When multiple people own a single piece of real estate, they each hold an undivided interest in the whole. If the owners cannot agree to sell the property voluntarily or buy out the dissenting party, any co-owner has the absolute right to file a partition lawsuit to dissolve the co-tenancy.
Under New York’s Real Property Actions and Proceedings Law (RPAPL) § 901, a tenant in common or joint tenant can petition the court to either physically divide the land or force a public sale of the asset. For a residential home or a commercial building, physical division is impossible. The only remedy is a court-ordered liquidation.
I frequently remind clients that a partition is not a gentle mediation. It is a structural dismantling of the investment. The judge appoints a referee to oversee the sale, the property goes to auction or is listed on the open market, and the family effectively surrenders control of the transaction timeline to the court system.
Protecting Inherited Wealth Under RPAPL § 993
Historically, partition actions were easily exploited. Predatory investors would buy a small fraction of an inherited property from one distant relative, force a partition sale, and buy the entire home at a public auction for pennies on the dollar, stripping families of their legacy.
To stop this erosion of generational wealth, New York enacted the Uniform Partition of Heirs Property Act, codified in RPAPL § 993. If the property meets the legal definition of “heirs property”—meaning it was passed down through a family and remains largely owned by relatives—the law imposes strict procedural safeguards before a sale can be forced. These include:
- A statutory right of first refusal: Co-owners who want to keep the property are granted a specific legal window to buy out the sibling who initiated the lawsuit.
- Independent valuation: The court must obtain an independent appraisal to establish an objective fair market value, preventing a forced sale at an artificially deflated price.
- Open market requirements: If a sale is ultimately required, it must generally be conducted on the open market through a real estate broker to maximize the return, rather than through a rushed courthouse auction.
These statutory protections preserve equity, but they also make the litigation process longer and more expensive. A partition action involving heirs property requires strict adherence to procedural timelines. Any misstep resets the clock.
The Financial Accounting of a Strained Relationship
Filing a partition action triggers a thorough financial accounting between the co-owners. The referee does not simply divide the final sale price by the number of names on the deed.
If one sibling lived in the property rent-free while another paid the property taxes, insurance premiums, and maintenance costs out of pocket, those disparities are reconciled during the partition. The court will adjust the final payout to reimburse the co-owner who carried the financial burden. However, proving these contributions requires exhaustive documentation. Cancelled checks, contractor invoices, and tax receipts become the currency of the courtroom.
We caution families that the legal fees, referee costs, and appraisal expenses associated with a partition action are typically paid out of the property’s sale proceeds. By the time the final checks are cut, the total wealth distributed to the family is noticeably smaller than it would have been had they agreed to a private sale. The financial toll of a partition is precisely why deliberate estate planning is necessary.
Preventing the Partition Through Prudent Stewardship
A partition action is almost always a symptom of incomplete planning. When a parent leaves a house to multiple children outright, they are trusting that the children will share identical financial goals, liquidity needs, and communication styles for the rest of their lives. In decades of practice, I have found that this is rarely the case.
True legacy stewardship requires anticipating conflict before it arises. Instead of relying on a simple will that transfers a deed to three siblings as tenants in common, we often structure the inheritance through a trust or a family limited liability company (LLC).
By placing the real estate inside a trust, a designated trustee is granted the sole authority to manage, lease, or sell the property. Under New York’s Estates, Powers and Trusts Law (EPTL), the trustee is bound by a strict fiduciary duty to act in the best economic interest of all beneficiaries. The children still receive the financial value of the asset, but they are stripped of the power to force a chaotic legal sale in Surrogate’s Court. Alternatively, an LLC operating agreement can dictate exactly how a family member can cash out their share, establishing a predetermined buyout formula that keeps the matter entirely out of the court system.
If you own property with family members and foresee a deadlock, or if you are drafting an estate plan and want to protect your children from future real estate disputes, deliberate planning is required. Schedule a 30-minute deed and succession review with our office to examine how your property is currently titled and establish a clear legal framework for its eventual transfer.
